Vocaj and Minister for Immigration and Multicultural Affairs (Migration) - [2024] ARTA 87

Vocaj and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 87 (24 December 2024)
Applicant/s:  Kristjan Vocaj
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/7890

Tribunal:General Member K. Thornton
Place:Melbourne
Date:24 December 2024

Decision:The Tribunal affirms the decision under review.

.....................[SGD].................................
General Member K. Thornton
Catchwords
MIGRATION – Mandatory visa cancellation – Applicant 32-year-old citizen of Albania – Class WC Bridging visa – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – legal consequences of the decision – extent of impediments if returned to Albania – Direction No. 110 applied – whether there is another reason to revoke cancellation – reviewable decision affirmed.
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Plaintiff M1/2021 and Minister for Home Affairs (2022) 275 CLR 582
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Secondary Materials
Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Statement of Reasons

From 14 October 2024, the AAT ceased operation and the Administrative Review Tribunal (‘the Tribunal’) commenced. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the Administrative Appeals Tribunal (‘AAT’) that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
BACKGROUND
The Applicant is a 32-year-old citizen of Albania. He arrived in Australia on a false Italian passport bearing the name ‘Michael Nodari’ on 22 December 2013.[1] The Applicant also completed an Incoming Passenger Card in that name upon arrival into Australia.[2] On 11 November 2020 the Applicant was granted a Class WC Subclass 030 Bridging visa in his name whilst awaiting the outcome of his partner visa application.[3] The Bridging visa was cancelled on 15 June 2023 due to his criminal offending.[4] He applied unsuccessfully to the Minister for revocation of the cancellation decision. The Applicant has asked this Tribunal to review that non-revocation decision.
[1] Exhibit R1, 256.
[2] Exhibit R1, 255
[3] Exhibit R1, 111.
[4] Exhibit R1, 111.
The cancellation of the Applicant’s visa was mandatory. Section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have ‘a substantial criminal record’. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’.
On 28 September 2022 the Applicant was sentenced to a total effective sentence of three years and nine months’ imprisonment. While he was serving that sentence, a delegate of the Minister (‘the Respondent’) mandatorily cancelled his visa on 15 June 2023 because he did not pass the character test and he was serving a full-time custodial sentence. The Minister is required to notify a non-citizen whose visa has been cancelled under s 501(3A) of the Act. The notice must include an invitation to make representations to the Minister about revocation of that decision.
A mandatory visa cancellation can be revoked under s 501CA(4) of the Act which states:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
On 3 October 2024 a delegate for the Respondent decided not to revoke the cancellation. That decision was reviewable by the Tribunal pursuant to s 500(1)(ba) of the Act. The Applicant was notified of this decision by email on 4 October 2024. The Applicant lodged an application in the AAT for review of that decision on 8 October 2024.
The Tribunal is satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. The issue the Tribunal needs to determine is whether there is ‘another reason’ to revoke the mandatory cancellation of the Applicant’s visa.
TRIBUNAL HEARING
The hearing of this application took place in the Melbourne registry of the Tribunal on 16 and 17 December 2024. The Applicant gave evidence in person, with the assistance of an Albanian interpreter. His oral evidence was supplemented by his written statements. The Tribunal also received oral evidence in support of the Applicant from:
(a)Ms Sheila Naku, the Applicant’s partner;
(b)Mr Xhulio Babaj, a friend of the Applicant;
(c)Mr Abaz Abazi, a friend of the Applicant;
(d)Mr Hysni Naku, the Applicant’s brother-in-law;
(e)Ms Rena Naku, the Applicant’s sister-in-law;
(f)Ms Carla Ferrari, the Applicant’s psychologist; and
(g)Mr David Haddad, a friend of the Applicant.
The Tribunal also received into evidence a statement in support of the Applicant from Mr Vahid Naku, the Applicant’s father-in-law.[5]
[5] Exhibit A1, 68.
A summary of the oral evidence of the Applicant’s witnesses’ is below. Ms Ferrari’s evidence is dealt with later in these Reasons.
Prior to giving evidence, the Applicant and witnesses Ms Sheila Naku, Mr Hysni Naku and the Applicant’s cousin were informed of their privilege against self-incrimination. Beside the Applicant, these were witnesses whom it was initially alleged had some involvement in the criminal offending, although only Mr Hysni Naku was ultimately convicted. The Applicant and witnesses indicated that they understood their rights under the privilege.
Ms Sheila Naku gave evidence that she and the Applicant have a son together. She reported visiting the Applicant every two weeks in prison with her son. Ms Naku gave evidence that her son recognises the Applicant as soon as he sees him in the prison waiting area.
She reports she currently does all the caring for her young son. Ms Naku wants the family to reunite and live together. She currently lives in a rental property that she shares with her brother. Her parents reside interstate. Ms Naku is not currently working. Ms Naku can’t imagine a life without the Applicant. Moving to Albania with her child to be with him is not an option because of a perceived blood feud involving the Applicant’s family.
Mr Babaj gave evidence that he first met the Applicant at the local Albanian soccer club, and that they had met each other’s family. He is aware of the Applicant’s offending but insists the Applicant is a good man. If the Applicant were released into the community, he would be happy to offer the Applicant a job doing home renovations, painting, and general house maintenance.
Mr Abazi gave evidence that he also met the Applicant at the local soccer club and has known him since about 2014. He said he would also be prepared to offer the Applicant a job delivering fruit and vegetables.
Mr Hysni Naku gave evidence that he was aware of the Applicant’s offending and confirmed that he too pleaded guilty to a rolled-up summary charge in relation to the offending and received a twelve-month Community Correction Order. He reported he successfully completed the Order. Mr Naku initially ran a business doing yard maintenance but when the pandemic hit, the business suffered. Mr Naku gave evidence of a close relationship with his nephew, the Applicant’s son, and tries to be involved in day-to-day activities with the child.
Ms Rena Naku gave evidence that she is a youth residential care worker and currently lives interstate. She reported observing a close relationship between the Applicant and his child and that being a youth residential worker she understands the importance of attachment to a parental figure. She has visited the Applicant in custody and has taken her own child, the Applicant’s niece, on visits. Ms Naku says that her daughter recognises the Applicant and is very comfortable with him and fells safe with him.
Mr David Haddad gave evidence that he is a restaurant owner and knows the Applicant as a former regular customer of his restaurant. He denied ever knowing the Applicant by any other name. He said he would be happy to offer the Applicant a job in the restaurant in a variety of different roles.
A cousin of the Applicant (who is subject to a Protection visa finding) also provided a statement in support and was called as a witness by the Respondent at the hearing.
The Applicant’s cousin gave evidence he and the Applicant are cousins but that he is sometimes referred to as the Applicant’s uncle. He has known the Applicant his whole life and they grew up together. He has visited the Applicant a few times in prison and has also called him a few times.
He denied being the person who provided the Applicant with the false documents to travel to Australia. He also gave evidence that he wasn’t aware how the Applicant obtained further false documents in Australia. He also denied recruiting the Applicant to be part of the cannabis cultivation operation, despite being named in the sentencing remarks. He confirmed he has never been charged in relation to the cultivation of cannabis or in regard to false documents.
The Tribunal also received into evidence the following materials:
(a)G-documents lodged 17 October 2024;[6]
(b)Respondent’s Statement of Facts, Issues and Contentions dated 6 December 2024;[7]
(c)Parts of the Supplementary G-documents lodged 6 December 2024;[8]
(d)Applicant’s Hearing Bundle lodged 10 December 2024;[9]
(e)Applicant’s Reply Hearing Bundle lodged 11 December 2024;[10]
(f)Statutory Declaration of Ms Sheila Naku dated 31 May 2024;[11] and
(g)Parts of the Justice Health File (pages 965 – 966, 970, 974 and 979 only).[12]
[6] Exhibit R1.
[7] Exhibit R2.
[8] Exhibit R3.
[9] Exhibit A1.
[10] Exhibit A2.
[11] Exhibit A3.
[12] Exhibit A4.
The Applicant objected to the tender of the Supplementary G-documents in their entirety which numbered 1343 pages. The Tribunal admitted the Supplementary G-Documents into evidence with the exclusion of certain portions that were objected to by the Applicant. These included the Victoria Police Statement of Material Facts,[13] the Prosecution Opening for Trial dated 11 March 2022,[14] the Charge-sheet (with the exception of the relevant summary charge, being Charge 6),[15] statements of the police brief in relation to charges not proceeded with,[16] the remainder of the brief of evidence, except for those pages expressly relied upon by the Respondent its submissions,[17] and the entirety of the ‘Justice Health’ file relevant to the Applicant, with the exception of certain pages already sought to be tendered by the Applicant.[18]
[13] Pages 83 – 104 and 407 – 429.
[14] Pages 105 – 154.
[15] Pages 430 – 435.
[16] Pages 436 – 471.
[17] Pages 484 – 668.
[18] Pages 947 – 1343.
Amongst the tendered Supplementary G-Documents was a Parole Suitability Assessment Report dated 22 August 2024 (‘Parole Report’).[19] Despite the Applicant’s objection to its tender, the Tribunal considered that the Parole Report was relevant to its task of assessing risk to the Australian community pursuant to paragraph 8.1.2(b) of the Direction. In the Tribunal’s view, the Parole Report contained relevant and recent information and evidence on the risk of the Applicant re-offending.[20] It was a comprehensive ten-page report assessing the Applicant’s suitability for parole by examining factors such as social history, proposed accommodation upon release and any related accommodation issues, transitional needs, treatment, and protective factors. The author of the report conducted three Parole Suitability Assessment Interviews with the Applicant and considered the sentencing remarks and Ms Ferrari’s first report dated 22 January 2024 amongst other material. The Parole Report also annexed a five-page ‘Level of Service/Risk, Need, Responsivity’ Full Report which provided the basis for the assessment of the Applicant’s risk.[21] The Parole Report was subject to submissions by the parties on the question of weight and will be discussed further below.
[19] Pages 672 – 681.
[20] Direction 110, 8.1.2(2)(b)(i).
[21] Exhibit R3, 708 – 712.
HAS THE APPLICANT PASSED THE CHARACTER TEST?
The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ as defined by s 501(7) of the Act, as he was sentenced to a term of imprisonment of more than 12 months on 28 September 2022. He therefore does not pass the character test in s 501(6)(a) of the Act. Failure to pass the character test arises as a matter of law.[22] The Applicant accepts that he does not pass the ‘character test’ but submits there is ‘another reason’ why his visa cancellation should be revoked.[23]
[22] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
[23] Exhibit A1, 1 [2].
IS THERE IS ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, ‘Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (the Direction) applies.
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains eight principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five ‘Primary considerations’ that the Tribunal must take into account. They are:
1protection of the Australian community from criminal or other serious conduct;
2whether the conduct engaged in constituted family violence;
3the strength, nature and duration of ties to Australia;
4the best interests of minor children in Australia; and
5expectations of the Australian community.
Paragraph 9 of the Direction sets out the ‘Other considerations’ which must also be taken into account. These include, but are not limited to:
1legal consequences of the decision;
2extent of impediments if removed; and
3impact on Australian business interests.
Paragraph 7 of the Direction says:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
3One or more primary considerations may outweigh other primary considerations.
Primary consideration 1: Protection of the Australian community
For this primary consideration, paragraph 8.1(1) of the Direction provides that decision-makers should keep in mind that:
·the safety of the Australian community is the highest priority of the Australian Government;
·the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens; and
·in this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

Paragraph 8.1(2) of the Direction provides that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
In assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, the Tribunal has considered the following relevant matters listed in paragraph 8.1.1(1) of the Direction:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)    any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In this case, the Applicant pleaded guilty to the following offences:[24]
(a)Charge 1: Falsification of documents between 1 July 2019 and 10 November 2020;
(b)Charge 2: Cultivation of cannabis in not less than a commercial quantity between 27 January 2020 and 10 November 2020;
(c)Charge 3: Permitting the use of premises for the purposes of cultivation of cannabis between 27 January 2020 and 10 November 2020;
(d)Charge 4: Trafficking in a drug of dependence, namely cannabis, on 10 November 2020;
(e)Charge 5: Knowingly possess a false travel document on 10 November 2020; and
(f)Related summary offence: Dealing with property suspected of being the proceeds of crime on 10 November 2020.
[24] Exhibit R3, 75.
The offending was uncovered after a police investigation into the cultivation of cannabis in domestic homes across the eastern suburbs of Melbourne.[25] On 10 November 2020, search warrants were executed at various properties with the Applicant being arrested at one of those properties where he was also residing.[26] The Applicant pleaded guilty to the above charges in relation to the police investigation.
[25] Exhibit R1, 37 [1]
[26] Ibid.
Charges 1 and 5 on the Indictment relate to false identity documents found concealed at the Applicant’s property in Rutland Road, Doncaster. Those documents were a Victorian Driver’s Licence in the name of Fabio Benucci, a Medicare card in the name of Fabio Benucci, a Costco card in the name of Cristian Lazzaretto, and a false Italian passport bearing the Applicant’s image but in the name of Marco Carlani.[27]
[27] Exhibit R1, 37 [3], 60.
Charge 2 on the Indictment relates to the cultivation of cannabis in not less than a commercial quantity across two properties in Ernst Street, Doncaster and Harrold Street, Doncaster.[28] At those properties police located 68 cannabis plants weighing a total of 110.5 kilograms.
[28] Exhibit R1, 37 [2].
Charge 3 on the Indictment relates to the allowing a premise (in this case, Milan Street, Doncaster) to be used for the purposes of cultivation of cannabis. This was a property leased by the Applicant in the false name of Fabio Benucci.[29]
[29] Exhibit R1, 53, 59.
Charge 4 on the Indictment relates to the trafficking of cannabis being a total of 21.36 kilograms found in 48 small bags hidden under the stairs at Milan Street, Doncaster. The Applicant resided at this address and was therefore found to be in possession of the dried and bagged cannabis for the purposes of sale.[30]
[30] Exhibit R1, 37 [2].
The summary offence related to $5,440.00 in cash police located at the Rutland Road premises being property suspected of being the proceeds of crime.
Another house at Leonard Street, Doncaster, was connected with the Applicant as of the Applicant’s false names was used to rent the property.[31]
[31] Exhibit R1, 37 [2].
The most serious of these offences is plainly Charge 2 (Cultivation of cannabis in no less than a commercial quantity) which carries a maximum penalty of 25 years imprisonment.[32] The sentencing judge described the offending as a ‘well-organised criminal operation.’[33] His Honour remarked: ‘[i]t is clear a group of relatives and associates with connections to Albania operated together to cultivate and distribute cannabis in the Eastern suburbs [of Melbourne].’[34]
[32] Exhibit R3, 156
[33] Exhibit R1, 38 [5]
[34] Ibid.
His Honour stated that the gravity of cultivation and trafficking crimes are in part determined by the quantities of cannabis involved but also important is the role of an accused in the whole criminal operation.[35] In regard to the Applicant’s role, His Honour remarked ‘[i]n this case, it is clear you are an organiser of your own crop houses.’[36] He described the offending as ‘serious and of significant scale in terms of volume or weight and sophistication of how the crimes were committed.’[37] The Applicant was connected with more than one property and was ‘deeply involved’ in the cultivation of his own crop as admitted.[38] According to His Honour, ‘[t]he operation involved all aspects of the crime of growing then moving cannabis to the users.’[39]
[35] Ibid.
[36] Exhibit R1, 38 [6].
[37] Exhibit R1, 40 [9]
[38] Ibid.
[39] Ibid.
His Honour also remarked that this ‘was organised crime’ and that the Applicant ‘played an important and trusted role within the organisation.’[40] The Applicant was sentenced to a total effective sentence of three years nine months imprisonment, with a non-parole period of two years and six months.[41] The sentencing judge noted that the Applicant had already served 118 days in custody by way of pre-sentence detention.[42]
[40] Exhibit R1, 40 [10].
[41] Exhibit R1, 43 [19].
[42] Ibid.
The Applicant submitted by way of written submissions that the Applicant ‘was drawn into a cannabis growing operation’ after enduring successive lockdowns.[43] The Applicant submits that his role in the organisation was ‘low-level, even if described as “more than a mere crop sitter.”’[44] It was submitted by the Applicant that his role was to ‘tend and water the plants.’[45] The Applicant submitted that he participated in the enterprise because he had no visa which entitled him to ‘legitimately work.’[46]
[43] Exhibit A1, 2 [7].
[44] Ibid.
[45] Ibid.
[46] Ibid.
The Respondent contends that the criminal conduct engaged in by the Applicant is very serious.[47] The Respondent also relies upon the Applicant’s other conduct such as the use of a false passport to enter Australia, and the use of other false documents during the offending period. It is also contended that the following factors are relevant:[48]
(a)The significance of sentence of imprisonment of three years and nine months in light of the sentencing remarks made by the sentencing judge as to the Applicant’s involvement in the cultivation and trafficking of cannabis (para 8.1.1(1)(c) of the Direction);
(b)The increase in seriousness of the Applicant’s offending – from providing false information to enter Australia, and then using false documents to engage in the cultivation of a commercial quantity of cannabis (para 8.1.1(1)(e) of the Direction); and
(c)The consistent pattern of providing false or misleading information to the Department by using a false Italian passport and providing false information on an Incoming Passenger Card to gain entry into Australia (para 8.1.1(1)(g) of the Direction).
[47] Exhibit R2 [32].
[48] Exhibit R2 [38].
The Respondent submits that the nature and seriousness of the Applicant’s conduct weighs heavily in favour of affirming the decision under review.[49]
[49] Exhibit R2 [39].
The Tribunal considers the Applicant’s criminal offending to be very serious. The cultivation of a commercial quantity of cannabis is punishable by 25 years imprisonment. In addition, the sentencing judge made findings that that the Applicant was the organiser of his own crop houses, albeit it was noted that the Applicant was ‘nonetheless at a lower level than the true organisers and entrepreneurs.’[50]
[50] Exhibit R1, 38 [6].
It was also noted by the sentencing judge that the crime of cultivation of significant crops of cannabis in domestic homes is difficult to detect while the impact of the drug once sold into the community is significant.[51]
[51] Exhibit R1, 39 [8].
The Tribunal also makes a finding that the Applicant’s offending was aggravated by the use of false documents to secure properties that were to be used as cannabis production houses.[52] Particularly of concern was the offence related to the possession of a false passport that bore the Applicant’s image that was located at one of the properties. Clearly the Applicant’s conduct had escalated from first arriving in Australia on a false passport, to being found in possession of another false passport during the execution of the search warrants for the cannabis cultivation. This is demonstrative of an escalation of the seriousness of the Applicant’s criminal conduct.
[52] Exhibit R1, 40 [10].
Also of note was the duration of offending. The period of cultivation of the cannabis was said to take place over a nine-month period. This is not a case confined to a single date of offending (being the date of the execution of the search warrants for example). Clearly there was evidence to establish that the cannabis growing operation had been operating for a substantial period of time.
The Tribunal therefore finds that the Applicant’s conduct is very serious. The Tribunal therefore considers that this factor weighs heavily against revocation of the mandatory cancellation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction says that in considering the need to protect the Australian community from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:[53]
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
[53] The Direction, 8.1.2(2).
The Applicant has relied upon an expert report from Ms Carla Ferrari, forensic psychologist dated 22 January 2024 and a supplementary expert report dated 20 November 2024.[54] Ms Ferrari has concluded that the Applicant ‘is considered a low risk of reoffending.’[55] The Applicant has relied upon Ms Ferrari’s conclusion that the offences were committed as a result of poor mental health and poor problem-solving. Ms Ferrari cites the Applicant’s heightened distress and desperation in the unusual circumstances of the pandemic where the Applicant had no work available to him.[56] Ms Ferrari also notes that there is no evidence of any underlying ‘criminal attitude or antisocial belief system.’[57]
[54] Exhibit R1, 144, Exhibit A1, 81.
[55] Exhibit R1, 151 [89].
[56] Exhibit R1, 151-2 [91].
[57] Exhibit R1, 151 [90].
The Applicant’s counsel submitted that that the Applicant’s severe depression is consistent with remorse, and ‘unlike Mr Vocaj, a hardened criminal is unlikely to be ruminating on his circumstances let alone ruminating to a point which as triggered severe depressive symptoms.’[58]
[58] Exhibit A1, 5 [17].
The Applicant also relies upon his willingness to engage in vocational courses which he has engaged in whilst in custody. The Applicant has completed courses such as:
(a)Various Certificates in Kitchen Operations, Civil Construction, Cleaning, and General Education for Adults at Bendigo Tafe;[59]
(b)‘Changing Gears’ course which incorporated topics such as substance use, strategies and minimising harm;[60]
(c)‘Cannabis and Me’ course which encourage participants to explore and share their goals, and to reflect on the impacts of their use on themselves and others.[61]
[59] Exhibit R1, 166 – 172.
[60] Exhibit R1, 173.
[61] Exhibit R1, 174.
The Applicant has submitted that the completion of these courses has deepened his insight into his offending behaviour and the harmful effects of cannabis.[62]
[62] Exhibit A1, 5 [18].
The Applicant has also submitted that he has been a ‘model prisoner’ and that all drug tests have returned negative results. He states he is ‘at a low risk of reoffending.’[63] He says the reason ‘for my offending is that I was going through a really touch period in my life.’[64] The Applicant acknowledges this is no excuse, but that he had no way of supporting himself.[65]
[63] Exhibit A1, 9 [15].
[64] Exhibit A1, 9 [16].
[65] Ibid.
The Applicant relies upon Ms Ferrari’s finding that ‘there is strong evidence that he strong prospects for rehabilitation.’[66] The Applicant contends through written submissions that he ‘is not at risk of reoffending, because the circumstances which led to his offending were unique and unlikely to occur again, and he otherwise has no anti-social or criminopathic traits.’[67]
[66] Exhibit R1, 157 [139].
[67] Exhibit A1, 1 [2a].
In addition to the above, the Applicant relies upon the strong and unwavering support of his partner, and her extended family and friends and social ties in the community as also supporting his rehabilitation and lowering his risk of reoffending.
The Respondent contends that the protection of the Australian community weighs significantly in favour of affirming the decision under review.
The Respondent submits that the sentencing judge’s assertion in regard to the Applicant having ‘good prospects of reform’ were made in the context of the material before the court at the relevant time of sentencing in September 2022.[68] The Applicant submitted that this finding of ‘good prospects’ cannot be now impeached by this Tribunal.[69]
[68] Exhibit R2 [42].
[69] Exhibit A1, 5 [13]; relying on HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121 at [63], [179].
The Respondent submits that the Parole Report prepared by Corrections Victoria and dated 22 August 2024 is the most recent and reliable assessment to the Applicant’s risk of reoffending, that is, he is at medium risk.’[70] In particular, the Respondent relies certain aspects of the Parole Report as follows:[71]
(a)The Applicant was vague and provided minimal information at the Parole Suitability Assessment (‘PSA’) interview, and that there were gaps in the Applicant’s self-report against collateral information;[72]
(b)The Applicant refused to name the cousin who introduced him to the ‘wrong people’ and provided little detail around how he became involved in the cannabis syndicate;[73]
(c)The Applicant minimised his responsibility in the offending and stated he simply cared for the cannabis plans and was doing tasks he was asked;[74]
(d)The Applicant did not recall an uncle during the PSA interview, and when discussing the offences, he referred to a cousin and associates of his cousins. The Applicant was inconsistent throughout discussion regarding the circumstances of his family being involved in the index offending;[75]
(e)The Applicant’s partner maintained a narrative that the Applicant only cared for the plants and did not hold a significant role.[76]
[70] Exhibit R3, 672.
[71] Exhibit R2, [43].
[72] Exhibit R3, 673.
[73] Ibid.
[74] Exhibit R3, 674.
[75] Exhibit R3, 675.
[76] Exhibit R3, 678.
The Parole Report relied upon the ‘Level of Service: Risk, Need, Responsivity’ (‘LS/RNR’) tool to assess the Applicant’s risk.[77]
[77] Exhibit R1, 680, Exhibit R2 [44].
The LS/RNR tool assesses an offender’s level of risk based on a numerical weighting of eight factors.[78] Those eight factors are criminal history, education/employment, family/marital, leisure/recreation, companions, alcohol/drug problem, procriminal attitude/orientation, and antisocial pattern.[79]
[78] Exhibit R3, 672.
[79] Ibid.
Based on the application of this tool, the Applicant received a risk level of medium, with his highest risk areas being family/marital, companions and education/employment.[80] The Parole Report provided a breakdown of his risk and score, and annexed the Full Report relating to the score as determined by the administration of the LS/RNR tool.[81]
[80] Exhibit R3, 680.
[81] Exhibit R3, 672, 708 – 712.
The author of the report notes that the Applicant was ‘vague and provided minimal information’ and that there were ‘gaps’ remaining regarding the Applicant’s self-report.[82] The Applicant reportedly advised that he was struggling to earn regular income which was further exacerbated by the COVID-19 lockdowns.[83] The Applicant accepted he made a mistake by his offending conduct.[84] The author noted however that the Applicant ‘minimised his responsibility in the offending, advising he was “simply” caring for the cannabis plants and doing tasks he was asked to.’[85]
[82] Exhibit R3, 673.
[83] Ibid.
[84] Ibid.
[85] Exhibit R3, 674.

The Applicant contends that the Tribunal should give little to no weight to the Parole Report for a number of reasons.
First, the Applicant contends that the maker of the report was not available for cross-examination and the Applicant has been denied procedural fairness as a result. The Applicant relied upon the decision of Re Pochi and Minister for Immigration and Ethnic Affairs, and the passages of the decision that relate to a denial of a party’s opportunity to cross-examine upon, or comment on or to controvert the case the case against him.[86]
[86] (1979) 36 FLR 482, 508.
Second, the Applicant contends that there is no information regarding the author of the report and their qualifications. To that end, the Applicant relied upon Ms Ferrari’s evidence that she does not agree with the findings in the report and that it appears the author of same is not a qualified expert. The Applicant relied upon Ms Ferrari’s evidence that she was exercising her clinical judgement based on years of expertise in arriving at the conclusion that the Applicant was low risk, but that it appears the author of the Parole Report did not have the same level of expertise.
Third, the Applicant argues that the report is lacking in forensic detail and fails to provide an explanation for conclusions reached. The Applicant argues that there is no explanation as to the methodology employed and it appears the LS/RNR tool was not applied with the same level of rigour as the risk tool applied by Ms Ferrari.
Finally, the Applicant argues that the author is not independent, and there are forensic flaws in the calculation of scores in the ‘Histogram’ on page one of the Parole Report.
The Tribunal notes that the issue of the Applicant’s risk of reoffending in the context of paragraph 8.1.2 of the Direction was clearly in dispute. Both parties filed lengthy submissions regarding it and Ms Ferrari was cross-examined at length on this issue. Ms Ferrari was also given an opportunity to put forward her views on the Parole Report when questioned by the Tribunal. As a result, she explained in detail why she disagreed with the scores given to each of the eight domains in the LS/RNR tool. The Tribunal questioned Ms Ferrari on the absence of Ms Ferrari’s scores regarding the Applicant’s risk when she assessed him as ‘low.’ In response to questioning by the Tribunal, Ms Ferrari gave evidence that a score of ‘low’ means a person has scored between a range of five to ten on the tool she administered. She advised that a person who scored ‘very low’ would have scored between a range of zero to five.
The Tribunal questioned Ms Ferrari regarding the Applicant’s actual score on the risk scale as administered. Ms Ferrari advised that she did not have the exact score to hand, that it was accidentally omitted from her report, but that she recalled the score landed in the top of the range of ‘low’ and that the score was closer to ten.
The Respondent cross-examined Ms Ferrari on her awareness of the false documents, namely the fact of the Applicant’s arrival into Australia on a false passport, and that he had been found in possession of further false documents when arrested. Ms Ferrari advised that when she prepared her first report in January 2022, she wasn’t fully aware of the extent of the Applicant’s possession of false documents but became aware when she was reviewing the materials in preparing her supplementary report in November 2024. Ms Ferrari gave evidence that even if she had been aware of the full extent of the false documents in relation to the offending, it still would not have changed her assessment of low risk of reoffending. She indicated it might have caused her some concern, but it would not change her overall assessment.
In closing submissions, the Applicant relied upon certain aspects of the Parole Report regarding the fact that it did recommend the Applicant be released on parole with conditions. The Applicant emphasised that weight should be attributed to the recommendations made in the Parole Report, but that the finding of medium risk should be disregarded. The Applicant argued that the Tribunal should place greater weight on the reports of Ms Ferrari, as an expert in her field, who interviewed the Applicant at length and was exercising her extensive clinical experience and judgment in reaching the conclusion that the Applicant was of low risk.
The Applicant also handed up to the Tribunal an ‘aide memoire’ document which provided pinpoint references to documents in the Respondent’s Supplementary G-Documents which dealt with the issue of risk. Within that document the Applicant referred the Tribunal to a number of risk assessments prepared by a prison case worker who administered the ‘LSI/R:SV’ risk assessment tool for the preparation of reports known as a ‘Local Plan Agreements.’ Each of these ‘Local Plan Agreements’ indicated that the Applicant scored as ‘low’ risk on the LSI/R:SV tool.[87]
[87] Exhibit R3, 762, 763, 765, 826-827, 843-844.
Under cross-examination by the Respondent as to the Applicant’s role in the enterprise, he stated he pleaded guilty to growing the cannabis crop at Harrold St on a ‘legal basis’ but not on a ‘factual basis.’ He also disavowed knowledge of the cannabis grown at Milan St which was the subject of Charge 3 (Permitting the use of premises for the purposes of cultivation of cannabis). The Applicant also attempted to distance himself from suggestions that he instructed his legal counsel at his sentencing hearing that it was the cousin (who was subject to the protection finding) that provided him with false documents located during the arrest phase and introduced him to the cannabis growing enterprise. The Applicant said under cross-examination before the Tribunal that those were his ‘lawyer’s words, and not his words’. The Applicant then proffered the first names of two associates (‘Rroc’ and ‘Flor’) who were involved in providing the false documentation to the Applicant. These names were not mentioned in any of the prior statements provided by the Applicant for the purposes of this review.
Counsel for the Respondent cross-examined Ms Sheila Naku, Mr Abazi and Mr Babaj on whether they knew anybody by these names. Each of these witnesses denied knowing anybody by that name.
The Respondent submitted by way of closing submissions that the Applicant is an untruthful witness who continues to make excuses for his offending behaviour and adapts a narrative to suit his desired outcome. The Respondent submitted that the Tribunal should find that the Applicant is of medium risk of reoffending.[88]
[88] Exhibit R2 [43].
The Tribunal has weighed the competing evidence and submissions in this matter. The Tribunal notes the differing opinions and that Ms Ferrari’s opinion is that the Applicant is low risk, but that the Parole Report assessed the Applicant as medium risk. The Tribunal has considered both assessments and has decided, with caution, to attribute greater weight to the assessment of Ms Ferrari, but finds that the Applicant is at low to medium risk of reoffending.
It is to the Applicant’s credit that the Tribunal notes that he was subject to very strict bail conditions for a period of over 18 months and no breaches were reported during that time. The Applicant gave evidence that he proposes to commence employment with Mr Abazi who has offered him work in his roof tiling business. The Applicant also has an offer of employment from Mr Haddad at his restaurant. The Applicant enjoys extensive support from his partner and her extended family and friends in the community. The availability of work should provide the Applicant and his partner with a source of income and alleviate the financial pressure the Applicant says he was under during the pandemic.
Although the Tribunal has attributed less weight to the Parole Report, it is of concern that the Applicant has appeared to be less than forthright with the Parole officers, particularly concerning the circumstances of the offending. Despite this, and despite the Parole Report finding that the Applicant is of medium risk, it still recommended the Applicant’s release on parole with conditions.
The Tribunal also notes that should the Applicant be released into the community, he will be subject to parole conditions at least in the interim, which will provide a measure of supervision and potentially mitigate against risk of further offending; his release into the community having been tested when he was subject to stringent bail conditions for a period of approximately 18 months.
Despite the finding of low to medium risk, the Tribunal notes the very serious nature of his criminal conduct. The most serious charge of Cultivation of a narcotic plant continued for approximately nine months (from 27 January 2020 to the date of arrest on 10 November 2020). The Applicant was already in the early stages of a relationship with Ms Naku prior to the commencement date of the Cultivation charge, having commenced that relationship in December 2019. The Applicant’s offending continued despite the presence of a stable relationship, and seemingly the same support networks he has in place presently from family and friends. Also of concern is the fact that the Applicant first entered Australia in 2013 by illegal means. This conduct is aggravated by the discovery of a second false passport when the Applicant was arrested on 10 November 2020. The Applicant gave evidence that he attempted to legitimise his visa status in Australia by trying to engage legal assistance but that the process was prohibitively expensive. The Tribunal notes that the Applicant only sought to regularise his visa status in September 2020 when he applied for a partner visa.[89] By this time, the Applicant was well enmeshed in his criminal offending.
[89] Exhibit R1, 138.
Weighing up the various factors, the Tribunal concludes that the protection of the Australian community weighs heavily against revocation of the mandatory cancellation decision. In accordance with paragraph 7.2 of the Direction, the Tribunal gives this primary consideration greater weight than the other primary considerations. The Tribunal also recognises that the principles that provide the framework for the determination of whether to revoke a mandatory cancellation state that the safety of the Australian community is the highest priority of the Australian Government (paragraph 5.2(2)). Although the Tribunal has found that the Applicant is a low to medium risk of reoffending in the future, the Tribunal notes that if the Applicant were to engage in similar offending conduct, this offending has the potential to cause harm members of the Australian community through the cultivation and sale of a narcotic drug. The cultivation charge was significant with a total of 68 plants discovered weighing a total of 110.5 kilograms. The fact that a further 21.36 kilograms was already prepared and ready for sale is of grave concern. An aggravating feature of the Applicant’s conduct was his possession of false documents for which he was convicted. This is demonstrative of a continued pattern of offending that has escalated in seriousness.
Therefore, it is the Tribunal’s view that this primary consideration as a whole weighs heavily against revocation of the mandatory cancellation decision.
Primary consideration 2: Family violence committed by the non-citizen
The Direction defines ‘family violence’ as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. The Direction provides that a member of a person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person.
Paragraph 8.2(1) of the Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence before the Tribunal that the Applicant has been convicted of an offence, found guilty of an offence, or had charges proven, that involve family violence. There is also no information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence. This Primary Consideration is not relevant and has not been afforded any weight in the balancing exercise.
Primary consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The decision-maker should also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community;
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant argues that the strength, nature and duration of his ties to Australia are significant. He relies upon the fact of his engagement to his partner, Ms Naku, who is an Australian citizen, and his ties with his Australian born child.[90] He also relies upon his other ties to Australia being Ms Naku’s extended family who are also Australian citizens. Ms Rena Naku, the Applicant’s sister-in-law gave evidence of travelling from interstate to visit the Applicant in prison. In addition, the Applicant also receives regular visits from his parents-in-law and brother-in-law.[91]
[90] Exhibit A1, 6 [21].
[91] Ibid.
The Applicant also has close ties to his friends, including Mr Abazi and Mr Babaj, whom he met through the local soccer club. The Applicant has offers of employment from Mr Abazi in the roof tiling business and from Mr Haddad at his restaurant. The Applicant also has the support of his relatives living in Australia.
The Applicant in particular relies on his close ties to his partner Ms Naku who he is engaged to marry. He relies upon their relationship and the fact that they have a son as reason to remain in Australia.
The Respondent accepts that the Applicant’s partner and son would be impacted by the Applicant’s removal from Australia.[92] The Respondent also notes however that the Applicant entered Australian on a false passport and remained in the community as an unlawful non-citizen up until a few months prior to his arrest. The Respondent submits that any consideration of the Applicant’s strength, nature and duration of any other ties to Australia should be given less weight in light of the fact that the Applicant has breached Australian laws from the outset of his entry and throughout his time in the community.[93] The Respondent accepts that, given the impact of the decision on the Applicant’s partner and son, and members of his extended family, that this consideration weighs somewhat in favour of revocation.[94]
[92] Exhibit R2, [55].
[93] Exhibit R2, [56].
[94] Exhibit R2, [57].
The Tribunal notes that the Applicant has been resident in Australia since the age of 21 and did not begin offending until 27 years of age. The Tribunal accepts that the Applicant has strong ties to Australia through the birth of his son in Australia and to his partner to whom he is engaged. It is also accepted that the Applicant has a wide network of support from his in-laws and family and friends who reside in Australia.
The Tribunal notes that the Applicant had commenced his relationship with Ms Naku a few months prior to the offending period but accepts that the relationship was in its early stages at that point. The Tribunal considers that the Applicant’s strength, nature and duration of ties to Australia are significant. The Tribunal accepts that the Applicant has strong ties to Australia through his partner and child, extended family and friends who are Australian citizens or Australian permanent residents and people who have a right to remain in Australia.
The Tribunal considers that this primary consideration weighs moderately in favour of revoking the mandatory cancellation decision.
Primary consideration 4: Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision.
This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction provides that when considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant argues that this primary consideration ought to be given weight in favour of revocation of the mandatory cancellation decision.[95]
[95] Exhibit A1, 1 [2].
The Respondent also accepts that this consideration weighs in favour of revocation.[96]
[96] Exhibit R2, [61].
The Applicant has a minor son who was born in February 2023 to his partner Ms Naku. The Applicant’s partner and son reside in a rental property in Melbourne. The Applicant was remanded in custody upon sentence on 28 September 2022. Therefore, the Applicant was in prison at the time of his son’s birth.
The child is currently one year old. Ms Naku gave evidence that she takes her son to visit the Applicant in prison every two weeks and speaks to him four to five times a day on the phone. Ms Naku also gave evidence that her child recognises the Applicant and enjoys a loving relationship with him. This relationship has been witnessed by other members of the Applicant’s extended family on prison visits, especially by Ms Rena Naku and Mr Hysni Naku.

In relation to paragraph 8.4(4)(a) of the Direction, the Tribunal gives significant weight to the nature and duration of the relationship, but this is moderated by the period of absence in the minor child’s life, given the fact that the Applicant has been incarcerated since before his child was born.
In relation to paragraph 8.4(4)(b) of the Direction, the Tribunal has taken into the account the length of time until the child turns 18. The minor son is currently an infant and the Tribunal accepts that the Applicant is likely to play a positive parental role in the child’s future. The Applicant is engaged to Ms Naku, the child’s mother, and there are no Court orders relating to parental access and care arrangements.
Paragraph 8.4(4)(c) requires the Tribunal to take into account the Applicant’s prior conduct and likely future conduct, and whether that conduct has, or will have a negative impact on the child. The Tribunal considers that the Applicant’s criminal offending has had a negative impact on his son and led to him being incarcerated and separated from the child when he was born. Indeed, the Applicant was sentenced to a head sentence of three years and nine months imprisonment which means the child will likely be aged approximately three or four years of age if the Applicant is released. If the Applicant offends in a similar matter, this will adversely impact the Applicant’s son and mean that there will likely be a further period of separation.
The likely effect that separation from the Applicant would have on his son would be profound (paragraph 8.4(4)(d)). If the Applicant were removed to Albania, it is unlikely that Ms Naku and her son would travel to Albania. Ms Naku spoke of her fear of blood feuds in Albania and noted that the males in the family are typically targeted. The Tribunal does accept there are other ways in which the Applicant and the minor child could remain in contact, including by phone calls and video calls in the same manner that is presently occurring. However, it is accepted that physical separation would have a profound impact on his son and has given this factor significant weight.
The minor child lives with Ms Naku, the child’s mother. Ms Naku has the support of her extended family although most of the family reside interstate (paragraph 8.4(4)(e)). Ms Naku currently fulfills the sole parental role in the minor son’s life and gave evidence of the struggles she encounters on a daily basis and her desire to have the Applicant fulfill his parental role in the child’s life.
Although the minor child is an infant, Ms Naku gave evidence that he recognises the Applicant as his father and that they have a close and loving bond. This factor is given moderate weight (8.4(4)(f)) given the young age of the child.
There is no evidence that the child has been exposed to family violence, nor any evidence that the child has suffered or experienced any physical or emotional trauma from the Applicant’s conduct (paragraphs 8.4(4)(g) and (h)). These factors are not relevant to the Tribunal’s consideration.
The Applicant also has a minor niece who resides interstate. Ms Rena Naku gave evidence that she has taken her daughter to visit the Applicant in prison and that they also have a close bond. The Tribunal accepts that the Applicant and his minor niece have a loving relationship despite the fact that she lives interstate (paragraph 8.4(4)(a)). The Tribunal accepts that the Applicant is likely to play a positive role in the child’s future, but also notes that there are currently other persons who already fulfill a parental role in relation to the child (paragraphs 8.4(4)(b) and (e)).
The Tribunal notes that the Applicant’s prior conduct and any likely future conduct would have a detrimental effect on his niece, in that it would result in future separation from the Applicant and his niece, should that future conduct result in further incarceration (paragraphs 8.4(4)(c) and (d)). If the Applicant were separated from his niece, contact could continue via electronic means, but the Tribunal accepts that physical separation would have a detrimental impact on her. Ms Rena Naku gave evidence that her child recognises the Applicant and has a close bond with him (paragraph 8.4(4)(f)). There is no evidence before the Tribunal in regard to paragraphs 8.4(4)(g) and (h) of the Direction.
The Tribunal accepts that this primary consideration weighs significantly in favour of revocation of the mandatory cancellation decision. The impact of separation of the Applicant from his son would have a profound impact on the child who is still an infant. The Tribunal also accepts that the separation of the Applicant from his niece would also have a detrimental impact.
Primary consideration 5: Expectations of the Australian community
Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non-citizen to enter or remain in Australia.
In addition, paragraph 8.5(2) of the Direction provides that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The Applicant has breached the community's expectation for non-citizens to abide by the law and, as per paragraph 8.5(2) of the Direction, the community expects that the Australian Government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct of the type undertaken by the Applicant.
In its written submissions the Respondent contends that the expectations of the Australian community must weigh against the Applicant as set out in the Direction and cases such as FYBR v Minister for Home Affairs (‘FYBR’).[97] The Respondent submits that the Australian community would expect a person who has engaged in the criminal and other conduct that the Applicant has engaged in to not hold a visa to remain in Australia.[98]
[97] Exhibit R2 [62], FYBR v Minister for Home Affairs [2019] FCAFC 185.
[98] Exhibit R2 [62.1].
This Tribunal in Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs summarised the position in regard to the propositions expressed in FYBR.[99] It cited a decision of Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs which provided as follows:[100]
173. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174. However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
[99] [2020] AATA 3953 [156] – [160].
[100] [2019] AATA 4424.
The Tribunal agrees with the Respondent’s arguments in this regard. The Tribunal notes that the Applicant first entered Australian in 2013 on a false passport. Thereafter he did not seek to regularise his immigration status until 2020 when he made a partner visa application. The Applicant did give an explanation to Ms Ferrari as to why he chose not to pursue regularising his visa status earlier, citing financial difficulties as an answer.[101]
[101] Exhibit R1, 154 [115].
The Applicant further continued a pattern of offending which again involved the use of false identity documents (including the possession of another false passport being Charge 5 of the Indictment). The Applicant used the false identity documents to obtain rental properties which were used for a large-scale, organised cannabis growing operation.
The Tribunal considers that the Applicant’s conduct and breach of Australian laws upon entering Australia on a false passport and further breach in securing false identity documents and cultivating and trafficking cannabis should be regarded as very serious. The Direction provides that that the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Tribunal considers that the Australian community would expect that the non-revocation of the mandatory cancellation of the Applicant’s visa is appropriate because of the nature of the Applicant’s criminal and other serious conduct. As such the Tribunal affords this primary consideration significant weight against revocation in the weighing and balancing exercise and considers that this primary consideration outweighs the primary considerations in favour of revocation of the mandatory cancellation decision.
Therefore, it is the Tribunal’s view this primary consideration weighs heavily against revocation of the mandatory cancellation decision.
Other consideration 1 – Legal consequences of the decision under section 501 or 501CA
Paragraph 9.1(1) provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under s 189, noting also that in s 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen.
Paragraphs 9.1.1 and 9.1.2 provides guidance where a non-citizen is covered, or not covered, by a protection finding.
The consequences of affirming the non-revocation decision include:
·being liable for removal from Australia as soon as reasonably practicable;
·remaining in detention until removal;[102]
·refusal of other visa applications and cancellation of other visas;[103]
·a prohibition on applying for certain other visas;[104] and
·exclusion from returning to Australia.[105]
[102] Migration Act 1958 (Cth) ss 189, 196, 197C, 198.
[103] Migration Act 1958 (Cth) s 501F.
[104] Migration Act 1958 (Cth) s 501E.
[105] Migration Act 1958 (Cth) s 503.
The Applicant has submitted that his family is being targeted by a blood feud in Albania. He submits that a conflict initially between two people has the potential to morph into conflict between entire extended families. This view is shared by members of the Applicant’s family who advised the Tribunal during their oral evidence that the passage of time does not mitigate against potential revenge attacks in the future. Ms Sheila Naku in particular spoke of her fear of harm befalling the Applicant and her young son if she were ever to travel to Albania.
The circumstances giving rise to the blood feud are outlined in the reasons of the Refugee Review Tribunal in relation to the granting of a protection visa to the Applicant’s cousin.[106] The blood feud was said to have arisen because a relative of the Applicant’s cousin had an altercation with his son-in-law which resulted in the non-fatal shooting of the son-in-law by the relative.[107] The shooting incident was said to have occurred in early 2012 and occurred in the same village where the Applicant’s cousin was born.[108] The Applicant’s cousin believed he would be targeted in a blood feud if he returned to Albania.[109]
[106] Exhibit A1, 15.
[107] Exhibit A1, 22.
[108] Exhibit A1, 22, 19.
[109] Exhibit A1, 22.
The Applicant relied upon the Country Information for Albania as produced in the G-documents, namely the paragraphs dealing with the prevalence of blood feuds in Albania.[110] The Country Information contains a definition of blood feud which has been extracted from the United Kingdom Country Policy and Information Note on Albania dated January 2023.[111] That definition provides that ‘[t]raditionally, it is only adult males who become targets of a blood feud, which can last for decades and can require the extinction of all male family members.’[112] The definition also provides that ‘while adult males are the primary target in a blood feud, other family members may also be at risk of death or lesser violations of their human rights.’[113]
[110] Exhibit R1, 243.
[111] Exhibit R1, 244.
[112] Ibid.
[113] Exhibit R1, 244-5.
The Applicant submitted that his claims regarding the existence of a blood feud in Albania gives rise to non-refoulement obligations. Paragraph 9.1.2(2) of the Direction provides that where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues considered in a protection visa application.
The Applicant submitted in his closing addresses that although the Tribunal is not required to consider non-refoulement obligations to the same level as a might arise on a protection visa application, the Tribunal is required to consider the Applicant’s representations and bring its mind to bear upon the facts stated in them and arguments put forward. Both parties referred the Tribunal to the High Court’s reasoning in the decision of Plaintiff M1/2021 v Minister for Home Affairs.[114]
[114] Plaintiff M1 and Minister for Home Affairs (2022) 275 CLR 582 [23]-[25].
The Respondent submitted that any claimed risk the Applicant makes in relation to a blood feud is ‘speculative and remote.’[115] The Respondent relies upon the passage of time between the events that allegedly led to the blood feud, and otherwise submits that there is no other evidence as to how the Applicant contends the men in his family are at risk from the family whose son-in-law was shot.[116]
[115] Exhibit R2 [75].
[116] Ibid.
The Tribunal has considered the non-refoulment obligations raised by the Applicant in these proceedings. The Tribunal has taken notice of the material contained in the Country Information Report and notes the facts alleged by the Applicant in relation to the particular blood feud said to be affecting members of his family. The Tribunal acknowledges that non-refoulment obligations may be engaged in the Applicant’s case but has otherwise deferred a detailed consideration of these obligations on the basis that it is open to the Applicant to apply for a protection visa.
The Tribunal has considered and acknowledged the other legal consequences of the decision and accepts that this consideration as a whole weighs somewhat in favour of revocation of the mandatory cancellation decision. The Tribunal is of the view however that this other consideration does not outweigh the primary considerations weighted heavily against revocation of the mandatory cancellation decision.
Other consideration 2 – Extent of impediments if removed
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in that country.
The Applicant argues that the Applicant will face economic issues if he is returned to Albania.[117] The Applicant notes that his father is now deceased, with his elderly mother residing in Albania. According to the Applicant, his mother ‘does not have the means to support him or offer him long-term accommodation there’.[118]
[117] Exhibit A1, 8 [32].
[118] Exhibit A1, 8-9 [32]-[33]
Ms Ferrari opined that if the cancellation decision is not revoked, the Applicant ‘will continue to struggle with depression and anxiety symptoms for the foreseeable future’, and that return ‘is likely to further exacerbate his current severe depression and anxiety symptoms due to poor prospects for reintegration.’[119]
[119] Exhibit A1, 88 [82]-[83].
The Applicant also submitted that he would be unlikely to access medication required to manage his medical condition should he returned to Albania.[120]
[120] Exhibit A1, 8-9 [32].
The Respondent submitted that whilst the Applicant may face some difficulty in re-establishing himself in Albania, this would only present as a short-term hardship and would not preclude resettlement.[121]
[121] Exhibit R2, [70].
The Respondent argues that the Applicant could access the medication he requires in Albania, and notes that his mother, sister, uncles and grandmother all reside there, and therefore the Applicant would have some familial support upon his return.[122]
[122] Exhibit R2, [73].
The Tribunal accepts that the Applicant will face some economic and cultural impediments if he is returned to Albania. The Tribunal notes however that the Applicant has immediate family who reside in Albania, he has previously worked there, and spent his formative years in both Albania and Italy. The Tribunal considers these impediments as resolvable, and that the Applicant would be able to re-establish himself in Albania if required.
The Tribunal also notes the Applicant’s health and medical conditions require ongoing medication and treatment. The Tribunal accepts that the level of health care in his home country may not be to the same standard as the Applicant has experienced in Australia, but the Tribunal does not consider this as a compelling reason to revoke the mandatory cancellation decision. The Respondent has provided material suggesting that the Applicant could receive the specific medical treatment he requires in Albania.[123]
[123] Exhibit R2 [71] n 1.

This other consideration weighs somewhat in favour of revocation of the mandatory cancellation decision but does not outweigh the primary considerations that weigh heavily against revocation of the decision.
Other consideration 3 - Impact on Australian business interests
Paragraph 9.3(1) provides that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no such claim made in this case, and therefore this other consideration is not relevant to the Tribunal’s consideration. This consideration has been afforded neutral weight.
CONCLUSION
Bearing in mind the principles outlined in paragraph 5.2 of the Direction, the Tribunal is required to weigh all of the considerations in accordance with the Direction.
The Full Court of the Federal Court in considering the operation of Direction no. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs, found that the Tribunal must ‘undertake a process of balancing the different considerations, or evaluating them against and in comparison to each other, in order to arrive at a decision whether there is “another reason” to revoke the cancellation.’[124]
[124] [2023] FCAFC 138 [34].
The Tribunal has undertaken its statutory task of weighing and balancing the relevant considerations in the Direction. The Tribunal has found that the primary considerations of the protection of the Australian community and the expectations of the Australian community weigh heavily against revocation and outweigh the primary and other considerations in the Applicant’s favour.
Although the primary considerations of strength, nature and duration of ties to Australia and the best interests of minor children weigh in the Applicant’s favour, the Tribunal gives primacy to the protection of the Australian community as it is permitted to do by paragraph 7(2) of the Direction. As mentioned, the Tribunal is of the view that the protection of the Australian community and the expectations of the Australian community considerations weigh heavily against revocation of the mandatory cancellation decision and outweigh the primary considerations and the other considerations weighing in the Applicant’s favour.
The Tribunal is neither satisfied that the Applicant passes the character test, nor that there is another reason why the original decision should be revoked.
The Tribunal therefore considers that the mandatory cancellation of the Applicant’s visa should not be revoked.
DECISION
The decision under review is affirmed.

I certify that the preceding 160 (one-hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of General Member K. Thornton

............................[sgd]............................................
Associate
Dated: 24 December 2024

Date(s) of hearing: 16 and 17 December 2024

Counsel for the Applicant: Mr Min Gao

Solicitors for the Applicant: WLW Migration Lawyers

Advocate for the Respondent: Ms Tegan Weir

Solicitors for the Respondent: HWL Ebsworth Lawyers

Date(s) of hearing:	16 and 17 December 2024
Counsel for the Applicant:	Mr Min Gao
Solicitors for the Applicant:	WLW Migration Lawyers
Advocate for the Respondent:	Ms Tegan Weir
Solicitors for the Respondent:	HWL Ebsworth Lawyers